What is a Reasonable Accommodation under California Law?

icon-disability

Under California law an employer must make reasonable accommodations for the known disability of an employee or applicant. Cal. Gov’t Code §12940(m); Dep’t of Fair Emp. & Hous. v. Lucent Technologies, Inc., 642 F.3d 728, 743 (9th Cir. 2011). A reasonable accommodation under the Fair Employment and Housing Act (“FEHA”) is “a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired.” Nadaf-Rahrov v. Neiman Marcus Group, Inc., 166 Cal. App. 4th 952, 974 (2008).

Employers are required to make a reasonable accommodation for the “known physical or mental disability of an applicant or employee” unless doing so would produce an undue hardship to the employer’s operation. Cal. Gov’t Code § 12940 (m)(1). “Undue hardship means an action requiring significant difficulty or expense, when considered in light of the following factors: (1) The nature and cost of the accommodation needed. (2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility. (3) The overall financial resources of the covered entity, the overall size of the business of a covered entity with respect to the number of employees, and the number, type, and location of its facilities. (4) The type of operations, including the composition, structure, and functions of the workforce of the entity. (5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.” Atkins v. City of L.A., 8 Cal. App. 5th 696, 733 (2017) (citing Cal. Gov’t Code § 12926(u)).

What does reasonable accommodation mean, in practice? The FEHA provides specific examples of possible reasonable accommodations, including the following:

(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.

(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

Cal. Gov’t Code § 12926(p).

The California Code of Regulations (“CCR”) provides a list of possible accommodations, including reasonable leaves of absence and reassignment to an alternate, temporary or vacant position in certain circumstances. Cal. Code Regs. tit. 2, § 11068(c)-(d).

In sum, there are many forms of reasonable accommodation and employers must make an effort to explore different alternative forms of reasonable accommodation. The failure to provide reasonable accommodation is common across different industries.

 

The workers’ rights attorneys at Hunter Pyle Law have handled failure to provide reasonable accommodation cases throughout California. If you have questions about your rights in the workplace, please feel free to contact us in order to utilize our free and confidential intake process. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.

What’s in a Name? An Analysis of California Wage Statements and the Requirement that an Employer Provide both its Name and Address

“What’s in a name?” That was the question asked by the California Court of Appeal in Noori v. Countrywide Payroll & HR Solutions, Inc. (2019) 43 Cal. App. 5th 957, 964. California Labor Code Section 226(a)(8) requires employers to provide wage statements that list “the name and address of the legal entity that is the employer” each pay period. “Name” is undefined in Section 226(a)(8). The California Labor Code further provides that “[a]n employee is deemed to suffer injury for purposes of this subdivision if the employer fails to provide accurate and complete information as required […] and the employee cannot promptly and easily determine from the wage statement alone […] the name […] of the employer.” Cal. Lab. Code § 226(e)(2)(B)(iii).

Section 226(a)(8) seeks to avoid confusion by employees regarding the identity of their employer so that employees may quickly identify their employer when grievances arise out of wages, for unemployment insurance purposes and for income tax and pension purposes. Mejia v. Farmland Mut. Ins. Co., No. 217CV00570TLNKJN, 2018 WL 3198006, at *6 (E.D. Cal. June 26, 2018) (citing Paul D. Ward, bill mem. to Governor Brown re Assem. Bill No. 1750 (1963–1964 Reg. Sess.) June 24, 1963).

Courts have held that Section 226(a)(8) does not expressly require that the company’s complete name or the name registered with the California Secretary of State be included on the wage statement. See, e.g., Mejia, 2018 WL 3198006, at *6 (“[I]f the Legislature had intended the name on wage statements be identical to the name registered with the Secretary of State, it would have stated so.”) Instead, Courts have repeatedly held that companies may list their fictitious business names on wage statements. See Savea v. YRC Inc. (2019) 34 Cal. App. 5th 173, 180 (using California registered fictitious business name “YRC Freight” instead of the legal corporate name “YRC Inc.” did not violate statute); see also York v. Starbucks Corp., No. CV-08-07919 GAF, 2009 WL 8617536, at *8 (C.D. Cal., Dec. 3, 2009) (using “Starbucks Coffee Company” a fictitious business name of “Starbuck Corporation” rather than the official corporate name satisfied Section 226(a)(8) as a matter of law); see also Mejia, 2018 WL 3198006, at *6 (Defendant’s use of the name “Farmland Mutual Insurance Co.” instead of its registered name “Farmland Mutual Insurance Company” did not violate Section 226(a)(8) as a matter of law); see also Sali v. Corona Reg’l Med. Ctr. (9th Cir. 2018) 909 F. 3d 996, 1011 (finding no violation where company issued wage statements that listed the employer as Corona Regional Medical Center, rather than Corona’s corporate name, UHS-Corona, Inc.).

However, not all fictitious business names satisfy the statute. Numerous courts have found that “severe truncations or alterations of the employer’s name can violate the statute, particularly where confusion might ensue.” Noori, 43 Cal. App. 5th at 965. For example, in Cicairos v. Summit Logistics, Inc. the California Court of Appeal found a violation of Section 226(a)(8) where an employer printed the word “SUMMIT” along with logo on earning statements, instead of “Summit Logistics, Inc.” (2005) 133 Cal. App. 4th 949, 961. Likewise, the District Court for the Central District of California found a violation where an employer listed “Wal-Mart Associates, Inc.” instead of “Wal-Mart Stores, Inc.” on earnings statements, where multiple Wal-Mart entities shared the same address. See Mays v. Wal-Mart Stores, Inc. (C.D. Cal. 2019) 354 F. Supp. 3d 1136, 1142-1144. The District Court for the Central District of California also found that an employer did not comply with Section 226(a)(8) where the employer printed “First Transit” and a logo on wage statements, instead of “First Transit Transportation, LLC,” where a different entity “First Transit, Inc.” also existed. Clarke v. First Transit, Inc., No. CV 07-6476 GAF (MANX), 2010 WL 11459323, at *4 (C.D. Cal., Nov. 4, 2010).

If your wage statements list a company name that is confusing and makes it difficult to identify your employer, please feel free to contact the experienced attorneys at Hunter Pyle Law for a free and confidential intake process. We can be reached at inquire@hunterpylelaw.com, or at (510) 444-4400.

Immigration Status Discrimination is Prohibited under California Employment Law

California law provides that employment law protections are extended to all workers “regardless of immigration status.” Cal Civ. Code § 3339. Furthermore, under California law, “a person’s immigration status is irrelevant to the issue of liability” and in a proceeding to enforce a person’s employment rights, “no inquiry shall be permitted into a person’s immigration status unless the person seeking to make this inquiry has shown by clear and convincing evidence that this inquiry is necessary in order to comply with federal immigration law.” Id.

California’s Anti-Discrimination laws extend to immigrants, including undocumented immigrants. Cal. Code Regs. tit. 2 § 11028. On July 1, 2018, new regulations from California’s Fair Employment and Housing Council (“FEHC”) clarified that discrimination based on immigration status is prohibited under the Fair Employment and Housing Act (“FEHA”). Cal. Code Regs. tit. 2 § 11028. In particular, through the 2018 regulations, the FEHC sought to make clear that immigration status discrimination is a subset of discrimination based on national origin.

Under FEHA, it is unlawful for an employer to discriminate against an employee “in compensation or in terms, conditions or privileges of employment” due to their national origin. Cal. Gov’t. Code § 12940(a). The 2018 regulations explicitly state that under FEHA the “national origin” protected category encompasses an employee’s immigration status. Cal. Code Regs. tit. 2 § 11028(f)(3). An employer who discriminates against an employee or applicant due to immigration status, must demonstrate by “clear and convincing evidence” that such discrimination is “required in order to comply with federal immigration law.” Id. Additionally, citizenship requirements that are a pretext for discrimination or serve the purpose of discriminating against employees or applicants on the basis of national origin or ancestry are unlawful. Cal. Code Regs. tit. 2 § 11028(h).

The 2018 regulations also explicitly state that threats of deportation or derogatory comments about immigration status or mockery of an accent or language may constitute harassment under FEHA. Cal. Code Regs. tit. 2 § 11028(j). Even a single threat of deportation, derogatory comment or incident of mockery may give rise to an unlawful hostile work environment under the act. Id.

As such, even though California law generally provides that immigration status should not interfere with a person’s employment rights, the FEHC’s 2018 regulations further clarified that immigration-status discrimination is prohibited by FEHA and is considered a subcategory of national origin discrimination.

The workers’ rights attorneys at Hunter Pyle Law have handled discrimination cases throughout California. If you have questions about your rights in the workplace, please feel free to contact us in order to utilize our free and confidential intake process. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.

Pay for Reporting Time under California Law: Do On-Call Shifts Count?

California law requires employers to pay employees for “reporting time” under the following circumstances:

(1) when employees are required to report for work, (2) do report but (3) are either not put to work or provided less than half of their usual daily shift or scheduled shift. See Industrial Welfare Commission (“IWC”) Wage Orders 1-16, Section 5; Ward v. Tilly’s, Inc. (2019) 31 Cal. App. 5th 1167, 1171.

Under IWC Wage Orders 1-16, reporting time pay amounts to two to four hours of pay at an employee’s regular rate, as follows:

(A) Each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work, the employee shall be paid for half the usual or scheduled day’s work, but in no event for less than two (2) hours nor more than four (4) hours, at the employee’s regular rate of pay, which shall not be less than the minimum wage.

(B) If an employee is required to report for work a second time in any one workday and is furnished less than two (2) hours of work on the second reporting, said employee shall be paid for two (2) hours at the employee’s regular rate of pay, which shall not be less than the minimum wage.

In Ward v. Tilly’s, Inc. the California Court of Appeal considered whether employees must physically appear at their worksite in order to be entitled to reporting time pay. Ward, 31 Cal. App. 5th at 1172. Defendant Tilly’s, Inc., a retail clothing company, required employees to contact their stores two hours before the start of on-call shifts to determine whether they were needed to work those shifts. Id. at 1171.  Employees were told to “consider an on-call shift a definite thing until they are actually told they do not need to come in.” Id.

The plaintiff, a sales clerk, argued that employees were entitled to reporting time pay even when they did not physically appear at the worksite at the start of scheduled shifts but were on-call and called-in. Id. Tilly’s argued that in order to be eligible for reporting time pay, employees must be present at the worksite at the start of their shift. Id.

The California Court of Appeal sided with the plaintiff, holding that eligibility for reporting time pay does not hinge on physical presence at the worksite. Id. at 1185. Instead, the court found that reporting to work is “best understood as presenting oneself as ordered” and therefore reporting time pay also extends to those employees who are on-call. Id.

The Ward Court reasoned that this interpretation of reporting time was consistent with the IWC’s goals in adopting reporting time pay under the wage orders. Id. at 1183. In particular, the court found that requiring reporting time pay for on-call shifts was consistent with the policy goals of requiring employers to internalize the costs of overscheduling, compensating employees for the inconvenience and expense of being available for on-call shifts (including hiring caregivers, forgoing other employment and traveling) and making employee pay more predictable. Id. at 1184-85.

In sum, even if you do not physically report to work, you may still be eligible for reporting time pay. Reporting time violations are common in retail, fast food, restaurant, construction and other industries.

The workers’ rights attorneys at Hunter Pyle Law have handled PAGA and class cases throughout California. If you have questions about your rights in the workplace, please feel free to contact us in order to utilize our free and confidential intake process. We can be reached at inquire@hunterpylelaw.com or at (510) 444-4400.

 

Independent Contractor vs. Employee: AB 5 Makes Dynamex California Law

On September 18, 2019, Governor Gavin Newsom signed California Assembly Bill 5 (AB 5) into law –expanding the California Supreme Court’s decision in the Dynamex Operations West, Inc. v. Superior Court (Dynamex) and codifying the “ABC test” for determining if a worker may be classified as an independent contractor, instead of an employee.

In Dynamex, the California Supreme Court revisited whether the factors from its prior decision in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (Borello) were the best way to determine employment for purposes of claims under the California Wage Orders. The Court concluded that Borello was not the proper test, ruling that the ABC test should be used to determine whether a worker should be classified as an employee or an independent contractor.

Under the ABC test, a worker is presumed to be an employee unless the company proves that the worker:

(A) Is free from the control and direction of the company in performing work, both practically and in the contractual agreement between the parties; and

(B) Performs work that is outside the usual course of the company’s business; and

(C) Is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the company.

To satisfy the ABC test and legally classify a worker as an independent contractor, the employer must prove that a worker is free from the company’s control, performs work outside the company’s primary business, and is regularly engaged in the trade the worker is hired for, independent of work for the employer. All three parts of the ABC test must be satisfied before a worker can properly be considered an independent contractor.

(more…)

Court Holds that Teachers at a Jewish Synagogue are not Exempt from Employment Laws under the Ministerial Exception

Employment laws provide workers with important protections, such as minimum and overtime wages, the right to be free from harassment or discrimination, and workers’ compensation. In certain situations, these laws conflict with The United States Constitution’s prohibition against governmental interference with the free exercise of religion. Specifically, the “ministerial exception” exempts individuals that are classified as “ministers” from various employment laws.

In Su v. Temple, 2nd Appellate Dist., Case No. B275426 (filed March 8, 2019) (“Su”), an appellate court analyzed whether the ministerial exception exempted preschool teachers, employed by a Jewish synagogue, from wage and hour laws.

Facts of the Case

In Su, the Plaintiff was a preschool teacher employed by defendant, Stephen S. Wise Temple (“Temple”). The Temple is a Reform Jewish synagogue that operated an on-site preschool and employed approximately 40 preschool teachers.

The Temple’s preschool program contained both secular and religious components. For the secular component, preschool teachers spent time engaging students in activities, such as games, books, science, and the promotion of reading, writing, and math readiness. Teachers also developed students’ social skills, assisted with toilet use, and supervised meals and snacks.

The religious component introduced students to Jewish life, religious ritual, and Judaic observance. The preschool teachers taught religious concepts, celebrated Jewish holidays, observed weekly Shabbat, and introduced students to Jewish values. The preschool’s purpose was to create a positive sense of Jewish identity and develop favorable attitudes towards Judaism.

The teachers were not required to follow the Temple’s philosophy or practice the Jewish faith. Furthermore, the teachers were not required to have theological training, be educated about Judaism, or be proficient in Hebrew. Last, the teachers were not ordained as religious leaders and did not hold themselves out as ministers of the faith.

The Temple did not require the preschool teachers to undergo theological study. Any guidance related to the practice of Judaism was provided by the Temple’s rabbis or administrators trained in Jewish education. The Temple provided the teachers with reading materials that included explanations of Jewish holidays, symbols, and Hebrew vocabulary.

Procedural History

In September 2013, the California Labor Commissioner brought an action on behalf of the preschool teachers against the Temple for various wage and hour violations, including failure to provide meal and rest breaks, and failure to pay overtime. The Temple filed a motion for summary judgment and asserted that the teachers were exempt from wage and hour laws due to the “ministerial exception” articulated by the United States Supreme Court in Hosanna-Tabor Evangelical v. E.E.O.C. (2012) 565 U.S. 171 (“Hosanna-Tabor”).

The trial court granted summary judgment and concluded that the preschool teachers were ministers under the ministerial exception. It reasoned that the exception is not limited to heads of religious congregations because prior cases recognized that teachers could serve ministerial functions. The Labor Commissioner appealed the trial court’s ruling.

Appellate Court’s Ruling

On appeal, the Second District Court of Appeal analyzed the preschool teachers’ circumstances under the Hosanna-Tabor factors and held that the teachers were not ministers.

To explain its ruling, the appellate court described the purpose of the ministerial exception. In Hosanna-Tabor the defendant, a church, fired a teacher who threatened to initiate a lawsuit for disability discrimination. The church claimed that the teacher was not suitable for carrying out its message, because her threat of legal action violated a core belief that disputes should be resolved internally. After her termination, the teacher filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). This led to the EEOC suing the church for employment discrimination.

As a defense, the church argued that a law forcing a religious group to retain an unwanted messenger of the faith is governmental interference with the free exercise of religion. The United States Supreme Court held that the teacher qualified as a minister under the ministerial exception because she was someone “whose functions are essential to the independence of…[a] religious group.” Hosanna-Tabor, supra, 565 U.S. at p. 200. To reach this conclusion, the United States Supreme Court identified the following factors:

The appellate court analyzed the preschool teachers’ circumstances under the Hosanna-Tabor factors. After doing so, the appellate court reached the following conclusions. First, the Temple did not identify the preschool teachers as ministers. The teachers were not required to practice the Jewish faith, given a religious title, or recognized as spiritual leaders.

Second, the Temple did not require the preschool teachers to attend formal Jewish training or education. In contrast, the plaintiff in Hosanna-Tabor was required to take college-level courses on faith-based subjects and pass an oral examination administered by a faculty committee.

Third, none of the preschool teachers identified themselves as ministers. The plaintiff in Hosanna-Tabor held herself out as a minister by “accepting the formal call to religious service” and claiming housing allowances were only available to those employed in the exercise of the ministry.

Under the fourth factor, the appellate court found that the preschool teachers’ duties reflected a role in conveying the Temple’s message and carrying out its mission. The teachers were responsible for implementing religious curriculum, such as teaching Jewish rituals, values, leading children in prayers, celebrating Jewish holidays, and participating in weekly Shabbat services. Thus, they served a role in transmitting Jewish religion and practice to future generations.

Based on an analysis of the aforementioned factors, the appellate court held that the ministerial exception did not apply to the Temple’s preschool teachers. Therefore, the teachers were not exempt from wage and hour laws.

Conclusion

After reaching its conclusion, the appellate court emphasized an important point regarding the ministerial exception. The factors articulated in Hosanna-Tabor are not a rigid formula for determining the application of the ministerial exception. The analysis is based on a totality of whether an employee is sufficiently central to a religious institution’s mission to require exemption from generally applicable employment laws.

If you have questions about whether you are protected by to California or federal employment laws, please feel to contact Hunter Pyle Law at (510) 444-4400 or inquire@hunterpylelaw.com.

 

Is calling in to check your work schedule considered reporting to work?

Predictive scheduling laws have recently received a great deal of attention. Although California is considering passing statewide predictive scheduling laws, individual entities like the City of San Francisco have already enacted similar legislation. The push for predictive scheduling is to provide workers with stability and predictability by allowing them advance notice of their work schedules.

Similar to predictive scheduling laws, the Wage Orders require employers to pay employees that are required to report to work but are not permitted to work. In the past, courts have interpreted “reporting to work” as being physically present at the workplace. However, is using modern technology, such as cell phones, email, and the internet to report to work considered “reporting to work?” An appellate court addressed this question in Ward v. Tilly’s, Inc., 2nd Appellate Dist. Case No. B280151 (filed Feb. 24, 2019) (Ward).

Facts of the Case

In Ward, the Plaintiff was a sales clerk for the clothing chain, Tilly’s. In additional to normal shifts, Tilly’s assigned certain employees to “on-call” shifts. These shifts provided Tilly’s with the ability to quickly increase or decrease a store’s staffing needs.

Each on-call shift had a specific start and end time. An employee assigned to an on-call shift was required to contact Tilly’s two hours prior to the start of the shift to determine if he or she needed to work. An on-call shift was considered a scheduled shift until an employee was informed that he or she was not required to work. An employee was disciplined if he or she did not contact the store before an on-call shift, contacted the store late, or refused to work an on-call shift.

Procedural History

Plaintiff filed a class action alleging that Wage Order No. 7 required Tilly’s to provide reporting time pay for on-call employees that were: 1) required to report to work but were provided less than half of their usual or scheduled day’s work; or 2) required to report to work a second time in a workday and provided with less than two hours of work. See Cal. Code regs. tit. 8, § 10070, subd. (5) (Wage Order No. 7).

For the first violation, an employee is entitled to “half the usual or scheduled day’s work” which cannot be less than two hours, but cannot exceed a maximum of 4 hours, at the employee’s regular rate of pay. Wage Order No. 7, subd. (5)(A). For the second violation, an employee is entitled to two hours of pay. Id., subd. (5)(B).

Plaintiff alleged that on-call employees “reported for work” when they called Tilly’s to determine if they were required to work. Therefore, Tilly’s violated Wage Order No. 7 when it did not provide on-call employees, who had their shifts canceled or shortened, reporting time pay.

Tilly’s argued that the act of calling in by telephone did not qualify as reporting to work. In order to “report to work,” an employee must be physically present at a Tilly’s store. The trial court agreed with Tilly’s interpretation of “reporting to work,” and sustained Tilly’s demurrer without leave to amend. Plaintiff appealed the trial court’s dismissal order.

Appellate Court’s Ruling

On appeal, the Second District Court of Appeal held that on-call employees calling in to determine if they were scheduled to work qualified as “reporting to work.” The appellate court emphasized that the purpose of the Wage Order’s reporting time requirement is to ensure that employers provide proper notice of work schedules and compensation for employees.

The appellate court gave the following reasons for its ruling. First, permitting employers to schedule workers to be ready and able to work, without actually compensating employees for this time, discourages employers from making competent scheduling decisions. Without reporting time pay, employers are incentivized to keep a large pool of contingent workers on standby for staffing shortages, but able to prevent individuals from working without financial consequences.

Second, on-call schedules impose major costs on workers. Workers are prevented from using their time to pursue higher education, forced to spend resources on child or elder care arrangements, and prevented from earning additional income at another job. On-call workers must incur these expenses, even if an employer chooses not to allow them to work.

Third, Tilly’s requirement to call two hours prior to the start of an on-call shift prevents an employee from using this time for his or her own purposes. The employee cannot schedule time with family members, engage in personal activities, or travel to areas without cell phone service.

Conclusion

The appellate court’s ruling was based on a 2-1 decision. Justice Egerton dissented and held that an employee must physically appear at the worksite in order to “report of work.” Although the appellate court held that an employee under Tilly’s on-call policy reported to work, the court declined to make a blanket ruling that an employee “reported to work” anytime that he or she contacted an employer to check his or her work schedule.

 

If you have questions about reporting time pay or your rights in the workplace, please feel to contact Hunter Pyle Law at (510) 444-4400 or inquire@hunterpylelaw.com.

Are taxi drivers independent contractors under Dynamex’s ABC Test?

Whether an individual is an employee or independent contractor has become a hotly disputed legal topic. This classification is important because independent contractors do not receive employment-related protections, such as the right to minimum and overtime wages, the prohibition against discrimination, and workers’ compensation.

In Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex) the California Supreme Court provided a new method for determining if an individual is an employee when pursuing claims under California’s Wage Orders. Following Dynamex, an appellate court analyzed whether taxi drivers are employees under the new ABC test articulated in Dynamex. See Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558 (Garcia).

Facts of the Case

In Garcia, the Plaintiff was a former taxi driver who worked for the Border Transportation Group, LLC (BTG). BTG’s business model was to lease out taxi permits through subsidiaries to drivers. BTG’s lease agreement expressly stated that Plaintiff was an independent contractor. Furthermore, Plaintiff’s vehicle contained a BTG subsidiary’s, Calexico Taxi, color scheme and logo. Last, BTG permitted Plaintiff to set his own work hours, use the taxi for personal errands, keep his own fares, enter sublease agreements, and advertise under his own name.

Procedural History

In 2014, Plaintiff sued BTG, and other related entities, for various wage and hour violations and wrongful termination. The wage and hour violations included claims for unpaid wages, failure to pay minimum and overtime wages, failure to provide meal and rest breaks, failure to furnish accurate wage statements, waiting time penalties, and violations of the Unfair Competition Law. The trial court granted summary judgment in favor of BTG, and held that BTG did not exercise the requisite control required to establish an employment relationship. While Plaintiff was appealing the trial court’s order, the California Supreme Court decided Dynamex.

Appellate Court’s Ruling

On appeal, the Fourth District Court of Appeal applied Dynamex’s ABC test to determine if Plaintiff was an employee or independent contractor. After applying the ABC test, the appellate court held that summary judgment was inappropriate for Plaintiff’s Wage Order claims. To support its ruling, the appellate court discussed the differences between the old control test applied in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 38 Cal.3d 341 (Borello) and the new ABC test in Dynamex.

The appellate court noted that under Borello “[t]he principal test of an employment relationship is whether the person to whom the services is rendered has the right to control the manner and means of accomplishing the result desired…” Borello, supra, 48 Cal.3d at p. 351. In addition to control, other factors are considered, such as:

  1.   whether the one performing services is engaged in a distinct occupation or business;
  2.   the kind of occupation, with reference to whether, in the locality, the work is usually done    under the direction of the principal or by a specialist without supervision
  3.   the skill required in the particular occupation;
  4.   whether the principal or the worker supplies the instrumentalities, tools, and the place of    work for the person doing the work;
  5.   the length of time for which the services are to be performed;
  6.   the method of payment, whether by the time or by the job;
  7.   whether or not the work is a part of the regular business of the principal; and
  8.   whether or not the parties believe they are creating the relationship of employer and            employee. Garcia, supra, 28 Cal.App.5th at p. 567.

The new ABC test differs in key aspects from the control test. Under the ABC test, an individual is presumed to be an employee unless the hiring entity establishes each of the following:

The appellate court focused on Part C of the test. Part C analyzes whether the worker has actually chosen to go into business for himself or herself. To satisfy Part C, it is important that an individual is actually engaged in an independent business, not that the fact that an individual had the opportunity to pursue such an activity.

In Plaintiff’s case, his taxi permit was limited to providing services for a specific company. If Plaintiff chose to provide services to a different company, he would need a new permit bearing the new company’s name. Furthermore, BTG did not provide evidence that Plaintiff provided services for other entities or operated an independent business. Thus, summary judgment was inappropriate because BTG did not meet its burden to establish that the Plaintiff engaged in an independent business.

Conclusion

Although the appellate court held that Plaintiff may be an employee, it limited its ruling to Plaintiff’s Wage Order claims. The appellate court emphasized that because Plaintiff’s claim for wrongful termination was not related to a Wage Order, Plaintiff failed to establish that he was an employee for the wrongful termination and other non-Wage Order claims.

 

If you have questions about whether you are an employee or independent contractor, please feel to contact Hunter Pyle Law at (510) 444-4400 or inquire@hunterpylelaw.com.

 

Labor Code 226.2: Are Piece-Rate Workers Compensated for Rest Periods?

What is California Labor Code 226.2?

California Labor Code section 226.2 says that workers who are paid on a piece-rate basis must be paid separately for their rest periods and “other nonproductive time.” Section 226.2 defines other nonproductive time as “time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis.” For workers in California who are paid on a piece-rate basis this means that they must be paid at least the minimum wage for all hours worked, and for their rest period time, in addition to their piece-rate compensation. This law was passed following two appellate court decisions that interpreted California Wage Orders to require that piece-rate workers be compensated for all hours worked, which includes the time they are not performing work for piece-rate wages. Gonzalez v. Downtown LA Motors, LP, 215 Cal. App. 4th 36, 40 (2013) (piece-rate auto-repair workers “entitled to separate hourly compensation for time spent waiting for repair work or performing other nonrepair tasks directed by the employer during their workshifts”); Bluford v. Safeway, Inc., 216 Cal. App. 4th 864, 872 (2013) (under California law that employees must be compensated for each hour worked, “rest periods must be separately compensated in a piece-rate system”). (more…)

Supreme Court: Service Advisors are Exempt under the FLSA

Reversing the Ninth Circuit Court of Appeals, the U.S. Supreme Court ruled that “service advisors” employed by car dealerships are exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”). Encino Motorcars, LLC v. Navarro, No. 16-1362, 2018 WL 1568025 (U.S. Apr. 2, 2018) (“Encino Motorcars II”).

The FLSA requires employers to pay employees overtime compensation if they work more than 40 hours a week, unless the employee is exempt. One of the exemptions in section 213 of the FLSA covers “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements….” 28 U.S.C. § 213(b)(10)(A). (more…)